May11, 2011

Washington, DC – Congressman Howard L. Berman, Ranking Democrat on the House Foreign Affairs Committee, delivered the following opening statement at today’s full committee mark-up of H. Res. 209, a resolution of inquiry.

Thank you, Madam Chairman.

I share your sense that the President should consult fully with Congress prior to the use of military force. This committee’s most important function is to review the use of military force abroad.

Although I would have welcomed further congressional consultation prior to military operations in Libya, I believe the urgency of the situation required immediate action. As many advocates observed, preventing a humanitarian catastrophe in Libya was critical.

I support the amendment proposed by the Chairman, and I appreciate her efforts to limit the scope of this resolution of inquiry.

The underlying resolution seems more calculated to force an unprecedented disgorging of Administration documents than a thoughtful examination of congressional prerogative in authorizing use of force.

There are certainly several outstanding questions regarding the War Powers Resolution in the Libya context, but this resolution is the wrong way to examine those issues. I appreciate the chairman’s efforts to address its shortcomings.

On a related note, I note the fact that the Armed Services Committee will mark up two provisions today related to the 2001 Authorization for the Use of Military Force. One provision will expand the AUMF, while the other will authorize the Secretary of Defense to undertake cyberwarfare pursuant to the AUMF of 2001.

Both of these provisions represent important efforts to clarify the President’s authority to use force. They also fall squarely within the four corners of this committee’s jurisdiction, and for good reason – the foreign affairs committee is best positioned to evaluate the foreign policy basis and, ultimately, the implications, of the use of force.

The authorizations proposed – although characterized as “reaffirmations” – pose numerous questions. For example, the cyber provision would give the President authority to conduct cyber attack missions under the 2001 AUMF. Are these offensive missions or just defensive ones? A cyber attack mission could be construed by a state being attacked as an act of war which could result in a “hot” conflict. There is a fine line given the evolving capabilities of cyber technologies which argue for caution in our approach.

I look forward to working with the chairman and with Mr. McKeon of the Armed Services Committee to ensure these provisions adequately incorporate the concerns of this committee.

There is also a prevailing view among our defense colleagues that HFAC’s oversight responsibilities end once armed conflict commences.

I beg to differ –it is this committee’s responsibility to understand not just the basis for the use of force, but how such ongoing uses of force impact US foreign policy.

It is difficult to conduct our oversight function when we are not briefed on the very uses of force pursuant to the 2001 AUMF. I thus plan to offer an amendment to the NDAA requiring that this committee be included in any briefings on conventional and cyber uses of force pursuant to the AUMF of 2001. I would welcome the Chairman’s support in this endeavor.